BVA9510305
DOCKET NO. 90-26 500 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUES
1. Entitlement to service connection for Meniere's disease.
2. Entitlement to service connection for an acquired
psychiatric disorder.
REPRESENTATION
Appellant represented by: Hugo R. Felix Rodriquez, Agent
ATTORNEY FOR THE BOARD
George E. Guido Jr., Counsel
INTRODUCTION
The veteran-appellant had active service duty from April 1942
to June 1963.
This appeal to the Board of Veterans' Appeals (Board) arises
from a July 1989 rating decision of the San Juan, Puerto
Rico, Department of Veterans Affairs (VA) Regional Office
(RO), denying the veteran's application to reopen the claims
of service connection for an acquired psychiatric disorder
and Meniere's syndrome on the basis of new and material
evidence. In a December 1990 decision, the Board also denied
the veteran's application to reopen the claims. The veteran
then appealed to the United States Court of Veterans Appeals
(the Court). In an order, dated in January 1992, the Court
vacated the Board's December 1990 decision and remanded the
case for further evidentiary development and readjudication.
In a July 1992 decision, the Board held that new and material
evidence had submitted to reopen the claims and remanded the
case to the RO for further development and for readjudication
based on all the evidence of record. The case was returned
to the Board in June 1993. In March 1994, pursuant to
38 U.S.C.A. § 5109(a) (West 1991), the Board referred the
case to an independent medical expert (IME) for an opinion.
In December 1994, the veteran submitted to the Board an
opinion from his own expert in response to the IME opinion.
As the veteran did not waive initial consideration by the RO
of the additional evidence, the Board remanded the case in
February 1995 to the RO to consider the expert's opinion.
See 38 C.F.R. § 20.1304 (1993). The case was returned to the
Board in March 1995.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that Meniere's syndrome was caused by
service-connected hearing loss -- the result of exposure to
acoustic trauma during service, and that it was manifested in
service by symptoms of dizziness, vomiting, headaches, nausea
and earaches for which he was treated. In support of his
claim, he refers to the statements of Dr. Cristino Colon
Arvelo and Dr. J. J. Felix Reyes as well as statements of
former servicemen and his former wife. He also contends that
his psychiatric disorder is related to Meniere's syndrome and
he refers to a list of physicians, including psychiatrists,
who support his claim.
The veteran argues that 38 U.S.C.A. §§ 1154 (consideration to
be accorded time, place and circumstances of service)
(formerly § 354) and 1112 (presumptions relating to certain
diseases and disabilities) (formerly § 312) apply as do the
presumption of soundness and the benefit-of-the-doubt
standard.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West
1991), after review and consideration of all the evidence and
material of record in the veteran's claims file(two volumes)
and for the following reasons and bases, the Board decides,
considering the benefit-of-the-doubt standard, that Meniere's
disease is related to service. The Board also decides that
the preponderance of the evidence favors service connection
for an acquired psychiatric disorder.
FINDINGS OF FACT
1. There is an approximate balance of positive and negative
evidence regarding the merits of whether Meniere's disease is
present and the weight of the evidence establishes that
Meniere's disease had its onset in service.
2. An acquired psychiatric disorder, dysthymia, is
etiologically related to service-connected Meniere's disease.
CONCLUSIONS OF LAW
1. Meniere's disease was incurred in service. 38 U.S.C.A.
§§ 1110, 1131, 5107(b) (West 1991); 38 C.F.R. §§ 3.303
(1994).
2. An acquired psychiatric disorder, dysthymia, is due to or
the result of service-connected disability. 38 C.F.R.
§ 3.310(a) (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
After a review of the record and of the veteran's arguments,
the Board is satisfied that the relevant facts pertinent to
the claims have been properly developed under VA's statutory
duty to assist. 38 U.S.C.A. § 5107(a)
Factual Background
The service medical records disclose that, on entrance
physical examination in April 1942, no ear or nervous system
abnormality was noted and hearing measured by voice was 20/20
in each ear. On separation examinations in December 1945 and
December 1948, there was no ear abnormality or psychiatric
diagnosis; hearing measured by voice was 15/15 in each ear.
In March 1950, the veteran was seen for complaints of
diarrhea and vomiting and the impression was food poisoning.
In September 1950, he was hospitalized for evaluation of
possible duodenal ulcer disease because of bloody vomitus.
There was a one week history of illness consisting of
symptoms of weakness, malaise, headache and runny nose as
well as nausea and vomiting several times for one day
(September 3, 1950) that had occurred aboard ship. The final
diagnosis was motion sickness. In June 1952, he was seen for
symptoms of malaise, headache, diarrhea and cough that were
associated with an upper respiratory infection. In November
1956 he was being treated for tonsillitis and he was given
APC aspirin for a headache. In May and June 1959 at Madigan
Army Hospital the veteran was hospitalized for 35 days for
evaluation and treatment of left shoulder pain. Past history
consisted of no allergies or operations and almost 18 years
of service. The review of systems was unremarkable. On
physical examination, the HEENT evaluation was clear. The
final diagnosis was strain of the left biceps brachii
following a fall while pulling a trailer. On re-enlistment
examination in December 1951 and on physical examination in
July 1959, there was no complaint, finding or history of ear
or psychiatric abnormality. Hearing measured by voice was
15/15 in each ear.
On separation/re-enlistment examination in June 1960, the
veteran denied having frequent or severe headache, dizziness
or fainting spells, ear trouble, frequent indigestion or
nervous trouble. In August 1960, he complained of dizziness
and sleepiness. On further evaluation, he complained of
lethargy and malaise for weeks with episodes of nausea
beginning the day before he complained. In October 1960, he
complained of a runny nose and headache and he was treated
with ASA (aspirin). In March 1961, he was treated for right
otitis externa. On annual physical examination in June 1962,
he denied having frequent or severe headache, dizziness or
fainting spells, ear trouble, frequent indigestion or nervous
trouble. Hearing measured by whispered and spoken voice was
15/15 in each ear. On examinations in April and May 1963 for
retirement, there was no complaint or finding of ear or
psychiatric abnormality and the veteran denied a history of
frequent or severe headache, dizziness or fainting spells,
ear trouble, frequent indigestion or nervous trouble. In the
April examination, hearing measured by whispered and spoken
voice was 15/15 in each ear. Later that same month wax was
washed from the left ear. In June 1963, the veteran
certified that there had been no change in his medical
condition since the May 1963 medical examination except for
ear trouble.
The Health Record -- Abstract of Service shows that from
September 1960 to June 1963 the veteran was at Fort Gulick in
the Canal Zone.
In July 1963, VA received the veteran's original application
for compensation, claiming, in pertinent part, ear trouble.
On initial VA examination in August 1963, the veteran
complained of left-sided hearing loss since 1961. After
audiometric testing, the diagnosis was perceptive left-sided
hearing loss. In a December 1963 rating decision, the RO
granted service-connection for hearing loss on the basis of
direct incurrence and hemorrhoids and assigned a
noncompensable rating for each disability.
In a January 1974 letter, R. Mulero Jimenez, M.D., ENT
specialist (ears, nose and throat) reported that the veteran
had recurrent episodes of vertigo, position type, since he
was on active duty and that vertigo had worsened, but there
was no tinnitus. He referred the veteran to VA for further
evaluation and treatment. Clinical notes, dated in December
1973, disclose that the veteran was seen for progressive
vertigo of about one month's duration. History included
vertigo in the last six years and while in the Armed Forces.
The impression was possible Meniere's disease.
In a January 1974 report, R. Correa Grau, M.D., psychiatrist,
stated that the veteran gave a history of emotional
derangement dating to October 1971. History also included
Meniere's syndrome, dating to service. The diagnosis was
depressive reaction. Further studies were recommended.
In a February 1974 physician's certificate, J. J. Felix
Reyes, M. D., reported treating the veteran since March 1964
when the veteran started to have dizzy spells, nausea,
vomiting and severe nervousness. At that time, the veteran
was examined and given medication; later he was referred to
an ENT specialist, Dr. Mulero (Jimenez). The diagnoses were
Meniere's syndrome and anxiety.
In a February 1974 statement, Dr. E. Grovas reported that the
veteran was treated for external otitis in 1965 and for a
condition compatible with Meniere's syndrome in 1967 and
1969.
At hearing in December 1976, the veteran testified that after
he returned from Korea in 1952 he heard voices, he had
feelings of fear and of someone being after him and he saw
Army doctors. Transcript (T.) 2-3. He also testified that
after he retired from service he started to have dizzy
spells, that he sought care from Dr. Felix Reyes who
prescribed [medicine] for an ear condition that made him fall
down, and for nerves, and that in 1969 he saw Dr. Cubano, a
psychiatrist. T. 4-6.
In a November 1976 report, M. A. Cubano, M. D., psychiatrist,
stated that when he first saw the veteran in 1969 he had
ideas of reference and persecution. The diagnosis was
chronic undifferentiated schizophrenia that Dr. Cubano
considered a maturation of a previous anxiety reaction. In a
September 1979 report, Dr. Cubano stated that the veteran had
developed referential ideas with paranoid ideation during
active duty and that the present chronic, undifferentiated
schizophrenia with paranoid features could be an aggravation
of the inservice condition. In a June 1981 report, Dr.
Cubano stated that while in Korea the veteran developed dizzy
spells, deafness, tinnitus and hearing loss. In a December
1992 statement, Dr. Cubano's final diagnosis was chronic,
paranoid schizophrenia.
In a December 1976 sworn statement, the veteran's former wife
(they were married from 1949 to 1967) stated that from 1958
to 1960 she noticed a drastic change in the veteran's
conduct, i.e., he would have nightmares and awake nervous and
scared, he kept to himself and avoided family, he became
jealous and he did not show affection for his children. She
stated further that his behavior continued while he was in
the Panama Canal Zone. She asserted that when he retired to
Puerto Rico he suffered dizziness and went to Dr. Felix Reyes
who treated him for ear and emotional conditions in 1963-64.
In a December 1985 statement, she added that she noticed at
the end of 1955 that the veteran had hearing loss, dizziness
and vertigo that recurred in 1957 and 1958 and again while he
in was Panama.
In a December 1976 sworn statement, the veteran's son
recalled his father's abnormal conduct in 1963.
In a December 1976 sworn statement, D. D. Cosme, a friend of
the veteran, stated that in 1963-64 the veteran's conduct was
abnormal, i.e., the veteran would sometimes speak and at
other times not, the veteran felt he was being watched, he
appeared aggressive, irritable and sad and his family was
afraid of him.
In a December 1976 sworn statement, I. S. C. Santos, a
friend, stated that in 1963-64 she saw sudden changes in the
veteran's personality and the veteran's wife would frequently
come to the house because she was afraid.
In a December 1976 report, R. Correa Grau, M.D.,
psychiatrist, stated that the veteran had been coming to the
office since October 1973. History included symptomatology
since the veteran was in Korea. The diagnosis was depressive
reaction and to rule out schizophrenia.
In a statement received in December 1976, J. J. Felix Reyes,
M.D., reported treating the veteran since 1963 for otitis
media and nervousness. History obtained from the veteran
included anxiety, tension, severe pain in the ears, dizzy
spells and headaches a few months prior to his discharge from
the Army. In an April 1983 statement, Dr. Felix Reyes,
orthopedic surgeon, reported that the veteran complained of
deafness and dizziness since 1951 when he was in Korea and
that the symptoms recurred aboard ship and while he was in
Panama. The physician expressed the opinion that the veteran
concomitantly developed deafness and vertigo due to trauma to
the inner ear. In an August 1986 statement, Dr. Felix Reyes
added that in 1959 while on leave in Puerto Rico he was
called because the veteran had spells, vomiting and sweating.
In statements dated in December 1977 and September 1979, F.
E. Bibiloni, M. D., otolaryngologist, reported treating the
veteran since November 1977 for complaints of dizzy spells
and vertigo with fair results, but as consequence the veteran
developed anxiety. In statements, dated in April and May
1981, Dr. Bibiloni indicated that the veteran's behavior
change, neurosis, was related to his ear condition, Meniere's
disease. In an April 1983 letter, Dr. Bibiloni stated that
the veteran's deafness was related to the Meniere's
condition.
On VA ENT examination in March 1978, the veteran complained
of recurrent vertigo with loss of balance and occasional
vomiting. The impression was labyrinthine vertigo and
bilateral hearing loss. In May 1978, an electro-
nystagmogram conducted by VA showed right unilateral
peripheral or nerve vestibular weakness. A similar finding,
right peripheral vestibular lesion, was made in August 1981
and September 1988.
In an August 1978 statement, a private physician reported
that the veteran had chronic Meniere's syndrome.
A September 1979 record of Mennonite General Hospital
discloses a 20-year history of dizziness, loss of balance,
tinnitus and hearing loss. The diagnosis was Meniere's
syndrome. The above entry was certified in October 1992.
At a hearing in September 1979, Dr. Cubano expressed the
opinion that the veteran's hearing loss was a factor in his
neuropsychiatric condition. T. 4-6. The veteran testified
that he suffered from a lack of equilibrium while in
Washington state in about 1957 or 1958 and again nausea and
vomiting while in Panama in 1962 and 1963, where he also had
a problem with nerves. T. 11, 13, 16-19.
Records of the United States Naval Hospital in Puerto Rico
(May 1978 to January 1981) disclose that in July 1978 the
veteran's complaints included loss of balance. On further
evaluation in August 1978, history included Meniere's
syndrome. In March 1979, history included treatment of
Meniere's syndrome by a private ENT for the last five years.
In November 1980, the veteran complained of recurring vertigo
since 1971. The active problem list included Meniere's
syndrome with 1963 as the defining date.
On VA neurologic examination in June 1981, history included
dizziness, hearing loss and vertigo since 1962. The veteran
stated that he started to notice dizziness during the Korean
War. On ENT examination that same month, history included
intermittent vertigo with nausea since 1960. The diagnosis
was Meniere's disease.
At a hearing in March 1982, Dr. J. A. Juarbe expressed the
opinion that secondary to the veteran's deafness he developed
loss of balance, Meniere's disease with vertigo, dizziness,
nausea and stomach ache, and a neurosis. T. at 2. The
veteran testified that dizziness started in 1952 and that he
complained of everything on his discharge examination. T. at
10-11.
In an April 1983 letter, H. Cartagena, M.D., ENT specialist,
reported that the veteran complained of dizzy spells and
hearing loss since 1951. The physician stated that deafness,
nausea, vomiting and tinnitus, which the veteran had, were
symptoms of Meniere's disease. In an October 1992 statement,
Dr. Cartagena, on the basis of the veteran's history,
diagnosed Meniere's disease with moderate to severe
sensorineural hearing deafness and mild acoustic trauma.
In a June 1983 opinion, J. A. Juarbe, M.D., psychiatrist,
stated that the veteran's mental condition was secondary and
directly related to deafness or Meniere's disease. He
indicated that the veteran had been under his care since
February 1982 and that while serving in the artillery in
Korea he developed dizziness, deafness and tinnitus. He gave
a similar statement in October 1992.
In statements dated in October 1985 and October 1992,
Cristino R. Colon Arvelo, M.D., reported that he was an Army
physician when he treated the veteran for recurrent vertigo,
nausea and vomiting that was diagnosed as Meniere's disease
in 1959 when the veteran was stationed in Panama.
In a September 1985 statement, J. Lopez Fontanez, reported
that in Panama the veteran served as an instructor under his
command and that he became ill with dizziness, vertigo and
hearing problems. He stated that the veteran was treated by
Dr. Arvelo and that the veteran's block of instruction had to
be canceled and his driving permit removed because of his
illness.
In a December 1985 statement, B. Ortega Santiago, who served
with the veteran in Panama as an instructor, recalled that
while in Panama they lived in the same barracks and he had
helped the veteran to sick call after he had lost his balance
and fell to the floor. He also remembered that the veteran
was released from a driving course because of dizziness.
In a December 1985 statement, J. Martinez Garcia, who served
with the veteran in Panama as company clerk, remembered that
he referred the veteran to the post dispensary because of
dizziness, loss of balance and vertigo and that on several
occasions he took the veteran there.
In a December 1985 statement, F. Perez, who served with the
veteran while he was stationed in Washington state and in
Panama, recalled that the veteran lost his balance on several
occasions and he had episodes of dizziness and vertigo. On
one occasion, he recalled that the veteran was having a
problem disconnecting a trailer and before he could reach the
veteran he lost his balance, fell and injured his forearm,
requiring hospitalization for 39 days at Madigan General
Hospital where the loss of balance was attributed to an
episode of vertigo.
In a December 1985 statement, V. E. Castro Ramos stated that
when the veteran spent leave at his house in 1959 he suffered
a dizzy spell and loss of balance and he took the veteran to
the hospital.
In a June 1986 hearing, B. Ortega Santiago, who served with
the veteran in Panama testified that the while in Panama the
veteran had dizzy spells and he took the veteran to the
dispensary once and that the veteran had a dizzy spell during
driver's training. T. 1-4. The veteran's cousin testified
that in 1964 he observed that the veteran was upset and
irritable and the veteran spoke of losing his balance and not
hearing well. He also testified that in 1959 or 1960 while
on leave the veteran had an episode of dizziness, headaches
and vomiting. T. 5-11. The veteran testified that he had
recurrent problems with hearing and dizziness that began in
about 1953, after his return from Korea. T. 13-19. He also
testified that he received treatment for his nerves after he
retired. T. 19.
In a November 1988 report of examination, A Pereira, M. D.,
ENT specialist, stated that the veteran complained of
recurrent vertigo since 1955. Caloric testing revealed
reduced response in the right ear. The diagnosis was
clinical evidence of Meniere's disease affecting mainly the
right ear apparently present since 1955.
In a January 1990 report, F. E. Bibiloni, M. D., stated that
he has treated the veteran since November 1977 for Meniere's
disease. He indicated that the veteran presented and related
the same symptoms he had during service, i.e., dizziness,
tinnitus, hearing loss, faintness and rotatory vertigo. In
his opinion, on the basis of the organic development of the
disease, the veteran's age and the symptoms he presented,
Meniere's syndrome was acquired during military service. He
also expressed the opinion that the veteran's neurosis was
due to Meniere's syndrome. Dr. Bibiloni made a similar
statement in March 1992.
In a February 1990 evaluation, J. L. Valderrabano, M. D.,
psychiatrist, concluded on the basis of history provided by
the veteran that the veteran suffered traumatic deafness with
Meniere's syndrome because he was exposed to artillery fire
during the Korean conflict and as a consequence he had
deafness and dizziness. In an October 1992 statement, he
indicated that the veteran presented with a similar condition
when he was evaluated in 1985, 1986 and 1989.
VA medical records, dated in January 1990 and January 1992,
disclose a history of vertigo.
On VA audio-ear examination in February 1993, the diagnoses
were bilateral sensorineural hearing loss and Meniere's
syndrome, "c.u." (unknown cause). There was a history of
onset of symptoms during active service in Korea. In a March
1993 addendum, the examiner explained that the information
relating to the onset of symptoms was given by the veteran.
The examiner noted and commented on the following: that the
episode of motion or sea sickness in September 1950 cannot be
considered Meniere's disease; that in January 1974 the
veteran was referred to VA for recurrent episodes of
positional vertigo since service; that in February 1974,
Dr. Felix Reyes certified that he had treated the veteran for
various symptoms including frequent dizzy spells since March
1964; that in February 1974 it was certified that the veteran
was treated for otitis externa in 1965 and for Meniere's
syndrome in 1967; and, that in March 1978, VA diagnosed
labyrinthine vertigo. The examiner then expressed the
opinion that the above evidence was not sufficient to
establish the diagnosis of Meniere's syndrome prior to 1967,
remarking that the presence of dizziness associated with
other symptoms in March 1964 was insufficient for a diagnosis
of Meniere's syndrome. In the examiner's opinion, Meniere's
syndrome was probably due to labyrinthine dysfunction.
On VA psychiatric examination in February 1993, the veteran
reported treatment with Dr. Jurabe since 1973. The diagnosis
was dysthymia secondary to Meniere's syndrome. The diagnosis
was confirmed in a March 1993 addendum.
In March 1994, the Board referred the veteran's case to an
independent specialist in otolaryngology for an opinion as to
the following questions: What is the probable date of onset
of Meniere's disease; what is the degree of probability that
the veteran's complaints in service were manifestations of
Meniere's disease; and, what is the probability that
Meniere's disease had its inception during service, given
Dr. Reyes' findings and subsequent course of the disease?
In December 1994, D. Bradley Welling, M. D., Director of
Otology and Neurology and Co-Director of Cranial Base
Surgery, Department of Otolaryngology, at the Ohio State
University Medical Center, in response to the Board's
questions, expressed the opinion that there is no evidence of
Meniere's disease prior to May 1963 and he doubted that the
veteran had Meniere's disease, in spite of the opinions of
internists, orthopedists, psychologists and otolaryngologists
who have evaluated the veteran; that it was highly unlikely
that the veteran had Meniere's disease while in service; and,
that it was highly unlikely that the veteran's symptoms had
inception during active service. In support of his opinion,
Dr. Welling commented that:
There was no documentation of
hospitalization or office visits for
vertigo during service;
Documented otitis externa should not be
related to the onset of Meniere's
disease;
He disagreed with the ENG findings of
right vestibular lesion as the findings
were less than that necessary to make a
diagnosis of vestibular disorder (citing
a medical text);
There was no evidence of caloric weakness
after many years of Meniere's disease
suggesting that the veteran did not have
Meniere's disease;
The veteran's high frequency, bilateral
hearing loss does not support the
diagnosis of Meniere's disease as hearing
loss from Meniere's disease occurs in the
low frequencies;
He disagreed with the opinion of [Dr.]
Jose Valderrabano that the veteran had
acoustic trauma due to artillery
explosions, arguing that the audiograms
mitigated against this;
There is no tinnitus as reported by Dr.
Jimenez on 1/10/94 (sic) (the correct
year was 1974) that mitigates against
Meniere's disease; and,
Complaints of ear pain are not consistent
with Meniere's disease as the disease
does not cause otalgia, but it is
consistent with external otitis that was
found on several examinations.
In December 1994, the veteran submitted an opinion of F. E.
Bibiloni, M. D., Otolaryngologist, in response to Dr.
Welling. In his Curriculum Vitae (the veteran waived initial
consideration of this evidence by the RO), he reported that
he was Chief of the Otolaryngology Department at Caguas
Hospital from 1980-1993 and that he had over 35 years of
private practice as an otolaryngologist.
In Dr. Bibiloni's opinion, the causes and the manifested
symptoms, i.e., nausea and vomiting (excluding motion
sickness in 1950), tinnitus, dizziness and headaches,
compatible with Meniere's disease arose while the veteran was
in military service although the disease itself came years
after his release from the Army. In support of his opinion,
Dr. Bibiloni cited two medical texts pertaining to the
definition, causes, symptoms and onset of Meniere's disease,
e.g., 2 Otolaryngology, 1689-1714 (Michael M. Paparella, M.
D., et al. eds., 3rd ed., 1991) (describing Meniere's disease
as a group of symptoms including vertigo often associated
with nausea and vomiting, fluctuating sensorineural hearing
loss, tinnitus and aural pressure in the affected ear).
In the opinion, Dr. Bibiloni also responded to the questions
posed by the Board in its request for an IME opinion. Dr.
Bibiloni replied that, considering the delayed history of
Meniere's disease, that is, a slow process that take years,
the probable date of onset of the disease itself was in the
1970s, that there is no doubt that the first manifestation of
symptoms of Meniere's disease were complaints of dizziness,
nausea, vomiting and headaches that were shown by Army
records in 1960-61, and that according to treatises, delayed
development of Meniere's disease, the inception of the
disease was during the veteran's active service (nausea,
dizzy spells, vertigo, vomiting and tinnitus) and symptoms
noted by Dr. Felix Reyes in March 1964 were compatible with
Meniere's disease.
In a March 1995 sworn statement (having waived initial
consideration by the RO), the veteran reiterated testimony he
gave at hearings in March 1982 and June 1986.
Analysis
1. Service Connection for Meniere's Disease
Service connection may be granted for disability resulting
from injury suffered or disease contracted in the line of
duty during active military service. 38 U.S.C.A. §§ 1110,
1131. Under 38 C.F.R. § 3.303(a), pertaining to principles
relating to service connection, service connection means that
the facts, shown by the evidence, establish that a particular
disease or injury, resulting in disability, was incurred
coincident with service. This may be accomplished by
affirmatively showing inception during service.
The veteran contends that Meniere's disease was manifested in
service by symptoms of dizziness, vomiting, headaches, nausea
and earaches for which he was treated. The service medical
records, spanning over 20 years of military service, do
contain several entries in the 1950s relating to the
following symptoms: vomiting associated with food poisoning
(March 1950); headache, nausea and vomiting attributed to
motion sickness (September 1950); headache associated with a
respiratory infection (June 1952); and, headache during
treatment for tonsillitis (November 1956). Clearly, these
symptoms did not occur as a group of symptoms associated with
vertigo, hearing loss or tinnitus by complaint or finding as
would be expected in the presentation of Meniere's disease.
See 2 Otolaryngology, supra. As for the 1959 incident in
which the veteran fell and injured his shoulder, none of the
symptoms associated with Meniere's disease was noted by
history and the reason for the veteran falling was not
recorded.
From 1960 to 1963, when the veteran retired, except for the
August 1960 entry when he complained of dizziness,
sleepiness, lethargy and malaise for weeks with episodes of
nausea, which will be separately discussed, he consistently
denied frequent or severe headache, dizziness or fainting
spells, ear trouble and frequent indigestion (June 1960
separation/re-enlistment examination, June 1962 annual
physical examination and the April and May 1963 examinations
for retirement). The veteran did complain of a runny nose
and headache (October 1960) and he was treated for otitis
externa (March 1961) and wax was washed from his ear (June
1963). Again, the cluster of symptoms associated with
Meniere's disease were not evident. See 2 Otolaryngology,
supra.
As for the August 1960 symptomatology, that arguably is
consistent with a group of symptoms associated with Meniere's
disease, i.e., dizziness, which for the sake of analysis the
Board equates to vertigo, and nausea, this is but a single
entry that was unrelated to any disease or chronic condition
and it does not provide satisfactory medical evidence
sufficient to identify the presence of Meniere's disease in
service.
As for other evidence relating to inservice symptoms, the
veteran has inconsistently testified that dizzy spells
started after he retired from service (December 1976 hearing
transcript), that he had dizziness or lack of equilibrium in
1957 to 1958 and in 1962 and 1963 (September 1979 hearing
transcript) and that dizziness started after his return from
Korea in 1952 or 1953 and that he complained of everything on
his discharge examination (March 1982 and June 1986 hearing
transcripts). There is also a statement from a former spouse
that she had noticed at the end of 1955 that the veteran had
hearing loss, dizziness and vertigo that recurred in 1957 and
1958 and again while in Panama (December 1985 sworn
statement).
Except for the veteran's August 1960 complaints, his
testimony and the lay statement are in conflict with the
service medical records (the veteran consistently denied
dizzy spells on examinations in the 1960s before and after
the August 1960 complaints and hearing loss was first
documented on retirement examination in May 1963), they are
unreliable for the purpose of showing a chronic disease in
service on the basis of the combination of manifestations
sufficient to identify the disease entity. See 38 C.F.R.
§ 3.303(b).
Additionally, there are lay statements submitted in 1985
from: J. Lopez Fontanez, the veteran's commanding officer,
who stated that in Panama the veteran became ill with
dizziness, vertigo and hearing problems and that his driving
permit had to be removed because of his illness; B. Ortega
Santiago, who recalled that in Panama he had helped the
veteran to sick call after he had lost his balance and had
fallen to the floor, as well as testimony that the veteran
had dizzy spells during driver's training (June 1986 hearing
transcript); J. Martinez Garcia, who remembered that in
Panama he had referred the veteran to the post dispensary
because of dizziness, loss of balance and vertigo; F. Perez,
who served with the veteran while he was stationed in
Washington state and in Panama, recalling that the veteran
had episodes of dizziness and vertigo; V. E. Castro Ramos who
stated that the veteran suffered a dizzy spell and loss of
balance in 1959 and he had taken the veteran to the hospital;
and, the veteran's cousin testifying that in 1959 or 1960
while on leave the veteran had an episode of dizziness,
headaches and vomiting (June 1986 hearing transcript).
The lay statements and the testimony, expressing personal
knowledge and observations contemporaneous with service, are
credible and contextually consistent with the August 1960
health record entry and tend to support a finding that the
veteran had on different occasions a group of symptoms
characteristic of Meniere's disease rather than the single,
isolated entry in the service medical records. However, the
lay statements and testimony, alone, do not establish the
presence of Meniere's disease in service in the absence of
competent medical evidence pertaining to medical causation or
to a medical diagnosis. See Espiritu v. Derwinski,
2 Vet.App. 492 (1992) (holding that a lay person is not
competent to offer evidence that requires special knowledge
such as medical knowledge).
For the medical link of causation or diagnosis during
service, the Board focuses on the 1985 and 1992 statements,
which are essentially identical, of Dr. Arvelo who asserted
that as an Army physician in Panama he had treated the
veteran for recurrent vertigo, nausea and vomiting in 1959
that was diagnosed as Meniere's disease. While Dr. Arvelo
reports treating the veteran in 1959 in Panama, an abstract
of service shows the veteran in Panama beginning in September
1960. The discrepancy may be partially explained by the fact
that the Dr. Arvelo's recollections came about 25 years after
he had treated the veteran in service. In any event, the
Board has no reason to doubt the fact that Dr. Arvelo treated
the veteran for recurrent vertigo, nausea and vomiting which
is consistent with the August 1960 service medical record
entry and the credible lay statements and testimony above.
The Board, however, does not find persuasive the statement
that Meniere's disease was diagnosed during service. There
is a substantial body of medical evidence that weighs heavily
against such a conclusion. First, the diagnosis conflicts
with the service medical records, including the reports of
examination prior to separation from service, as there is not
a single reference to Meniere's disease by complaint, finding
or history. Second, the diagnosis conflicts with the post-
service medical evidence closest to service as Meniere's
disease was not identified on VA examination in August 1963
(or was it diagnosed on VA examination in March 1978), Dr.
Grovas, who treated the veteran for a condition compatible
with Meniere's syndrome disease in 1967 and 1969, did not
diagnose Meniere's disease and Dr. Mulero Jiminez, an ENT
specialist, diagnosed possible Meniere's disease in December
1973. While Dr. Felix Reyes, who specializes in orthopedics,
reported treating the veteran in March 1964 for dizzy spells,
nausea and vomiting he referred the veteran to Dr. Mulero
Jiminez who diagnosed only possible Meniere's disease in 1973
as discussed above.
The evidence does show that Meniere's disease or syndrome was
not consistently diagnosed until 1977 -- almost 15 years
after service: treatment for Meniere's disease since
November 1977 (January 1990 statement of Dr. F. E. Bibiloni,
ENT surgeon); chronic Meniere's syndrome (August 1978
statement of a private physician); diagnosis of Meniere's
syndrome (September 1979 record of Mennonite General
Hospital); Meniere's syndrome (records of the United States
Naval Hospital, August 1978 and March 1979); the diagnosis of
Meniere's disease (June 1981 VA ENT examination); the
diagnosis of Meniere's disease by ENT specialists, Dr.
Cartagena and Dr. Pereira (April 1983 letter and November
1988 examination report, respectively); and, the diagnosis of
Meniere's syndrome in February 1993 (VA examination).
Also opposed to the diagnosis of Meniere's disease coincident
with service is the opinion of a VA physician, who after
examining the veteran and reviewing the record, stated that
the evidence was not sufficient to establish the diagnosis of
Meniere's syndrome prior to 1967 (February 1993 VA
examination). In addition, in the opinion of Dr. Welling, an
independent medical expert, he doubted that the veteran had
Meniere's disease, that it was highly unlikely that the
veteran had Meniere's disease while in service and that it
was highly unlikely that the veteran's symptoms had inception
during active service (December 1994 opinion). Also, the
veteran's own expert, Dr. Bibiloni, expressed the opinion
that Meniere's disease itself came years after the veteran's
release from the Army (December 1994 opinion).
On the basis of the above medical evidence, the Board rejects
the diagnosis of Meniere's disease coincident with service by
Dr. Arvelo.
Dr. Welling's opinion also poses a more fundamental problem,
i.e., whether the veteran currently has Meniere's disease.
Stated differently, if Meniere's disease is not shown, there
is no disability to service connect and the claim fails. If
Meniere's disease is present, then the question is whether
Meniere's disease can be related to service on the basis of
the statutory and regulatory provisions pertaining to the
principles of service connection.
In support of his opinion, Dr. Welling relies on the
following observations that are summarized as follows: (1) no
documentation of hospitalization or office visits for vertigo
during service; (2) otitis externa should not be related to
the onset of Meniere's disease; (3) ENG findings of right
vestibular lesion were less than that necessary to make a
diagnosis of vestibular disorder; (4) no evidence of caloric
weakness after many years of Meniere's disease suggesting
that the veteran did not have Meniere's disease; (5) high
frequency, bilateral hearing loss does not support the
diagnosis of Meniere's disease, (6) no acoustic trauma,
arguing that the audiograms mitigated against this; (7) no
tinnitus as reported by Dr. Jimenez in 1974 that mitigates
against Meniere's disease; and, (8) complaints of ear pain
are not consistent with Meniere's disease as the disease does
not cause otalgia.
On the question of whether or not Meniere's disease is
currently shown, the Board utilizes the opinion of Dr.
Welling, disputing the presence of Meniere's disease, as a
framework for weighing the evidence. As for (1) the lack of
documentation of hospitalization or office visits for vertigo
during service, this is countered in the record by the vague
but nevertheless recorded complaints of dizziness, sleepiness
and episodes of nausea in service in 1960 as well as the lay
statements and the testimony, including that of his
commanding officer and fellow servicemen, expressing personal
knowledge and observations primarily about episodes of
dizziness contemporaneous with service. The Board recognizes
that vertigo and dizziness are not synonymous to a physician,
but they may be to a lay person. And the Board acknowledges
that Dr. Welling was not asked to consider the lay statements
and testimony, but the Board is required to consider all the
evidence of record in reaching its determination.
As for references to (2) otitis externa, (6) acoustic trauma
and (8) complaints of ear pain as they related to Meniere's
disease, the record does contain contrary opinions from
private physicians for whom at least acoustic trauma was
considered as indicative of Meniere's disease (Dr. Felix
Reyes, April 1983 statement -- deafness and vertigo due to
trauma to the inner ear; Dr. Cartagena, April 1983 letter --
associating acoustic trauma with diagnosis of Meniere's
disease; and, Dr. Valderrabano, February 1990 evaluation --
traumatic deafness with Meniere's syndrome).
As for reference to (3) ENG findings of right vestibular
lesion, the conflict is one of degree. Clearly,
electronystagmograms conducted by VA showed right vestibular
weakness in May 1978, August 1981 and September 1988 that is
not disputed. As for (4) no evidence of caloric weakness,
the evidence is divided as in a November 1988 report of
examination, Dr. Pereira, ENT specialist, reported that
caloric testing revealed reduced response in the right ear.
As for a lack of (7) tinnitus, the evidence is also divided
as in April 1983, Dr. Cartagena, ENT specialist, stated that
the veteran had tinnitus that was a symptom of Meniere's
disease.
As for (5) high frequency hearing loss, Dr. Welling states
that such hearing loss does not support the diagnosis for
Meniere's disease. References to hearing loss in the record
make no distinction between high and low frequency hearing
loss in relating hearing loss to Meniere's disease.
In weighing this evidence and accounting for the divergent
opinions of the medical experts, the Board finds that the
evidence has resulted in an approximate balance of positive
and negative evidence as to the presence of Meniere's disease
after service and that under the standard of the benefit-of-
the-doubt, 38 U.S.C.A. § 5107(b), the veteran prevails in
establishing that he has Meniere's disease -- an issue
material to the outcome of the claim.
The remaining question is whether Meniere's disease is
related to active service. Where the disease identity is not
established during service, as is the present case,
subsection (d), 38 C.F.R. § 3.303, provides that service
connection may be granted for a disease diagnosed after
service, when all the evidence, including that pertinent to
service, establishes that the disease was in fact incurred in
service.
The evidence shows that after service the veteran was treated
or diagnosed with: dizzy spells, nausea, and vomiting in
March 1964 (February 1974 physician's certificate by Dr.
Felix Reyes); a condition compatible with Meniere's syndrome
in 1967 and 1969 (February 1974 statement by Dr. Grovas);
progressive vertigo with history over the last six years
(January 1974 letter by Dr. Mulero Jimenez); dizziness and
vertigo and Meniere's disease since November 1977 (December
1977, September 1979 and January 1990 statements of Dr.
Bibiloni); labyrinthine vertigo (March 1978 VA ENT
examination); chronic Meniere's syndrome in August 1978
(statement of a private physician); Meniere's syndrome in
September 1979 (record of Mennonite General Hospital);
Meniere's syndrome in August 1978 and March 1979 (records of
the United States Naval Hospital); Meniere's disease in June
1981 (VA ENT examination); Meniere's disease in April 1983
and November 1988 by ENT specialists, Dr. Cartagena and Dr.
Pereira; and, Meniere's syndrome of unknown cause in February
1993 (VA examination).
Although it was not until 1977 that Meniere's disease was
definitively diagnosed by Dr. Bibiloni, in the opinion of a
VA physician, there was evidence sufficient to establish the
diagnosis of Meniere's syndrome in about 1967 (February 1993
VA examination). Moreover, in the opinion of Dr. Bibiloni,
the symptoms noted by Dr. Felix Reyes in March 1964 were
compatible with Meniere's disease (December 1994 opinion).
This considerable body of evidence combined with the vague
but documented symptoms of dizziness and nausea in service
along with the several lay statements of military personnel,
who personally observed symptoms of dizziness, supporting the
sparse service medical records, and the evidence showing
similar complaints shortly after service, beginning in 1964,
adequately supports the opinion of Dr. Bibiloni that the
inception of Meniere's disease was during the veteran's
active service. For these reasons, entitlement to service
connection for Meniere's disease is established. 38 U.S.C.A.
§§ 1110, 1131; 38 C.F.R. § 3.303(d).
2. Service Connection for an Acquired Psychiatric Disorder
Under 38 C.F.R. § 3.310(a), a disability that is proximately
due to or the result of a service-connected disability shall
be service-connected. The Board has determined that
Meniere's disease was incurred in service. The veteran
contends that his psychiatric disorder is related to
Meniere's disease.
The evidence shows that the veteran was treated for
nervousness and symptoms consistent with Meniere's disease in
March 1964 by Dr. Felix Reyes. In a January 1974 report, R.
Correa Grau, M.D., psychiatrist, stated that the veteran gave
a history of emotional derangement dating to October 1971.
History included Meniere's syndrome and the diagnosis was
depressive reaction. He also diagnosed depressive reaction
and to rule out schizophrenia in December 1976. In a
November 1976 report, M.A. Cubano, M.D., psychiatrist, stated
that when he first saw the veteran in 1969 he had ideas of
reference and persecution. The diagnosis was chronic
undifferentiated schizophrenia that Dr. Cubano considered a
maturation of a previous anxiety reaction. He testified too
that the veteran's hearing loss was a factor in his
neuropsychiatric condition (September 1979 hearing
transcript). In a December 1992 statement, Dr. Cubano's
final diagnosis was chronic, paranoid schizophrenia. In
statements dated in December 1977 and September 1979,
F. E. Bibiloni, M.D., otolaryngologist, reported that a
consequence of dizzy spells and vertigo the veteran developed
anxiety. In statements, dated in April and May 1981, Dr.
Bibiloni indicated that the veteran's behavior change,
neurosis, was related to Meniere's disease. He also
expressed the opinion that the veteran's neurosis was due to
Meniere's syndrome in statements in January 1990 and March
1992. In a June 1983 opinion, J. A. Juarbe, M.D.,
psychiatrist, stated that the veteran's mental condition was
secondary and directly related to deafness or Meniere's
disease. On VA psychiatric examination in February 1993, the
diagnosis was dysthymia secondary to Meniere's syndrome. The
diagnosis was confirmed in a March 1993 addendum.
On the basis on the above medical evidence, the preponderance
of the evidence favors service connection for dysthymia
secondary to service-connected disability, Meniere's disease,
which was diagnosed on the latest VA psychiatric examination
in 1993.
ORDER
Service connection for Meniere's disease is granted.
Service connection for an acquired psychiatric disorder,
dysthymia, is granted.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act., Pub. L. No. 103-271, § 6, 108 Stat.
740,_____(1994), permits a proceeding instituted before the
Board to be assigned to an individual member of the Board for
a determination. This proceeding has been assigned to an
individual member of the Board.
(Continued on next page)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.